Lower courts are more likely to dismiss legal malpractice cases on the statute of limitations than are Appellate courts. Dellwood Dev., Ltd. v Coffinas Law Firm, PLLC
2024 NY Slip Op 06184 Decided on December 11, 2024 Appellate Division, Second Department is such an example.

“The plaintiffs commenced this action against the defendants Coffinas Law Firm, PLLC, and George Coffinas (hereinafter together the defendants), and another defendant, inter alia, to recover damages for legal malpractice arising out of the defendants’ representation of the plaintiffs in connection with the purchase of the plaintiff Dellwood Development, Ltd. (hereinafter Dellwood), by the plaintiff Demetrios Delengos and the litigation that resulted from that purchase. The defendants moved pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them. In an order dated July 5, 2022, the Supreme Court, among other things, granted those branches of the motion which were to dismiss the first, second, third, and fifth causes of action insofar as asserted against the defendants as time-barred. The court denied that branch of the motion which was to dismiss the seventh cause of action insofar as asserted against the defendants. The plaintiffs appeal, and the defendants cross-appeal.

“In moving to dismiss a cause of action pursuant to CPLR 3211(a)(5) as barred by the applicable statute of limitations, the moving defendant bears the initial burden of demonstrating, prima facie, that the time within which to commence the cause of action has expired. The burden then shifts to the plaintiff to raise a question of fact as to whether the statute of limitations is tolled or is otherwise inapplicable” (Fraumeni v Law Firm of Jonathan D’Agostino, P.C., 215 AD3d 803, 804 [internal quotation marks omitted]).”

“Here, the Supreme Court erred in directing dismissal of the first, second, third, and fifth causes of action insofar as asserted against the defendants as time-barred. The defendants established, prima facie, that these causes of action alleging legal malpractice were time-barred, as they accrued more than three years before the plaintiffs commenced this action (see CPLR 214[6]). However, in opposition, the plaintiffs raised questions of fact as to whether the continuous representation doctrine tolled the applicable statute of limitations. In the complaint, the plaintiffs alleged, in effect, that the defendants’ initial malpractice occurred during their representation of the plaintiffs during Delengos’s purchase of Dellwood, that the defendants continued to represent the plaintiffs in the subsequent actions spurred by the purchase agreement and the initial malpractice, and that the defendants were also negligent in defending the plaintiffs in those subsequent actions. The record demonstrates that the defendants’ representation of the plaintiffs in the actions related to the purchase agreement did not end until, at the earliest, April 2017, when the defendants filed a notice of appeal on behalf of Dellwood in one of those actions. Therefore, there are questions of fact as to whether the defendants’ representation of the plaintiffs until April 2017 was an ongoing, continuous, developing, and dependent relationship between the clients and the attorney, such that the plaintiffs could not be expected to commence an action to recover damages for legal malpractice against the defendants with respect to the purchase agreement and subsequent litigation while the defendants continued to defend them in pending litigation (see Tulino v Hiller, P.C., 202 AD3d 1132, 1135; Stein Indus., Inc. v Certilman Balin Adler & Hyman, LLP, 149 AD3d 788, 790).”